Marietta texting ban would have to trump state law

October 1, 2013

Drivers could soon face stiff fines and jail time for texting or talking on cell phones within the city of Marietta, according to a proposal by Mayor Joe Matthews during a city council police and fire committee meeting Monday.

"We want to do away with texting and cell phone use in Marietta, but we'll have to override the current state law," Matthews said.

City law director Paul Bertram III explained that a state law enacted in March of this year prohibits all drivers under the age of 18 from using any type of electronic communication devices while operating a vehicle.

"State law has determined it's a primary offense for anyone under 18, but for drivers over 18 it's secondary, meaning an adult talking or texting on a cell phone would have to be pulled over for some other violation before they could be charged with a minor misdemeanor," he said. "The mayor's proposal would make (the cell phone violation charge) equal for everyone."

Matthews distributed copies of a law banning the use of cell phones while driving that was enacted by the Cleveland suburb Beachwood in mid 2012, and said a similar ordinance should be passed for Marietta.

The Beachwood legislation reads, in part, "No person shall use an electronic wireless communications device in any manner while driving a motor vehicle in the city, including composing, sending or receiving text messages and using an electronic wireless communications device to dial, answer, talk, or listen unless such use is otherwise authorized..."

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The authorized use includes contacting law enforcement, emergency personnel or fire departments to report an emergency situation.

Also authorized in the Beachwood law is a driver using a device while parked or stopped and removed from the flow of traffic. And any driver using a voice-operated or hands-free device that allows both hands on the steering wheel would also be exempted from the cell phone ban.

Public safety personnel using communications devices in the normal course of their work would also be exempted from the ban.

Violators of the Beachwood ordinance are charged with a first-degree misdemeanor that can include a fine of up to $1,000 and a maximum 180-day jail sentence.

Bertram said in order to supersede the current state law governing cell phone use while driving, Marietta's law would have to be stricter, meaning violations would be considered misdemeanors of the first, second, third or fourth degree.

A fourth-degree misdemeanor would carry a maximum penalty of $250 and up to 30 days in jail, a third-degree misdemeanor carries a $500 maximum fine and 60 days jail time, and a second-degree misdemeanor offense could end with a fine of up to $750 and 90 days in jail.

Bertram said it would be up to council to decide on the level of misdemeanor for which cell phone-using drivers would be charged, but he cautioned that the city would be liable to pay the housing cost for any jail time levied against an errant driver.

"That cost is currently $60 a day for the city," noted Councilman Steve Thomas, D-3rd Ward, who chairs the police and fire committee.

The committee members basically agreed that some sort of texting while driving ban should be put into place, and that the charge for violation should be considered at least a fourth-degree misdemeanor.

"I think this would be a good thing, texting while driving causes a lot of accidents," said Councilman Denver Abicht, D-at large.

Council president Walt Brothers agreed.

"I think the Ohio legislature chickened out by not making the state law more strict for adult drivers," he said. "Texting while driving is extremely dangerous."

But Councilman Michael Mullen, I-at large, recommended a public hearing be held to gain some input from citizens on the proposed texting while driving ban for the city.

Thomas scheduled a public hearing at 7 p.m. on Oct. 8 in the community building at Lookout Park.

Bertram said if an ordinance is enacted it would become effective in December of this year.

In other business Monday, city water superintendent Jeff Kephart told council's water, sewer and sanitation committee that painting of the solid contacts tank at the water treatment plant has been completed. But the cost will be more than the original $131,980 contracted because the project had to be re-done after the wrong paint was used on the tank's interior surface.

"The first coating had to be completely sandblasted off and re-painted because the wrong coating had been used before we knew it was the wrong kind of paint," Kephart said.

Bertram explained that the city had contracted with KTA-Tator, Inc. of Pittsburgh to determine three kinds of paint that could be used on the tank's interior. Painting contractor American Star was to select one of those three paints for application to the tank.

All three of the paints were supposed to be National Sanitation Foundation (NSF) certified for use in potable water tanks, but Bertram said the PPG paint selected by American Star was not NSF-approved, so the first coating had to be completely removed and an approved paint applied.

"This was not American Star's fault," he said. "KTA-Tator recommended the paints and they should have known the PPG paint was not certified by NSF."

Bertram said the paint finally used was expensive, and would likely require a significant additional cost for the city, although that cost has not been determined at this point.

He is currently in communication with KTA-Tator about the issue and expects legal action may be required to recover the city's extra costs for the painting project.